from the 'just-say-no'-campaign-fails-again dept

Some people just don't work well without direct supervision. When not responding to calls, officers are often left to their own discretion. Some do well with this freedom. Others… well, others do this sort of thing. [PDF]

Officers Biandudi and Wyle were patrolling a Pinellas County neighborhood in a marked police car. They saw twelve-year-old F.C. and his friend, Pedro, playing in the grassy common area of their mobile home park. Officer Biandudi testified that the boys looked like they were just playing around and having fun. He saw nothing alarming. Nevertheless, he pulled over and stopped the patrol car. He and Officer Wyle exited the car. They were uniformed and armed. They approached the boys and asked if they could search them. The boys consented. The officers found small amounts of marijuana on each boy. The State charged each with possession of cannabis.

No probable cause, much less reasonable suspicion. Just a couple of cops with nothing better to do and a couple of easy targets -- ones they knew from previous, apparently questionable interactions -- out in the open.

A motion to suppress the evidence was rejected by the lower court. The court expressed dismay at the officers' actions but still felt there was no precedent to support suppression.

There is no case law in here that says that if a person feels like they have no choice, then they're coerced. . . . .

[T]he reason why he felt that he needed to do it was because the officers had on a uniform and he felt that if he would have said no that it was going to happen anyway. But there's no case law that you've given me that said if a person says yes and they're saying yes because an officer has on a uniform that they have been coerced into doing that.

Both boys testified they felt compelled to consent to the search. More importantly, they felt that refusing consent -- which was well within their rights -- was futile. According to their previous experiences with these same officers, refusal had never resulted in them being left alone. Searches were performed anyway.

The Florida appeals court disagrees with the lower court's assessment, fortunately. Citing case law the teen's defense lawyer apparently couldn't locate, the appeals court notes that the state must reach a higher bar when claiming to have obtained consent from juveniles for searches. The state didn't meet it here. The lower court's inability to locate supporting case law caused it to arrive at the wrong conclusion: that the juveniles should have known they could have refused consent -- placing the burden on the juveniles for not trying harder to deter the officers from obtaining consent.

The appeals court points out that this conclusion misses a very key aspect of this interaction -- and others -- between the teens and these two police officers. The juveniles knew they could refuse consent. They also knew it would make no difference.

Here, in addition to F.C.'s young age, he and Pedro both testified that these same officers searched him in a previous encounter, ignoring F.C.'s refusal to be searched. The trial court considered these circumstances and concluded that F.C. and Pedro were not "green" because they had been stopped and searched before. The implication is that where juveniles have experience with law enforcement, they will know their rights. However, the opposite applies here—their experience taught them that saying no would not deter the police.

It doesn't matter if you know your rights when the police are just going to ignore them. That's what these two boys had concluded from their multiple interactions with these two officers. Refusing consent was no different than giving it. The appeals court gets it right: suppressing evidence is a deterrent to police misconduct, and these two officers are severely in need of judicial discouragement.

from the for-the-lack-of-a-warrant,-the-drug-bust-was-lost dept

Sixteen kilos of methamphetamine the Border Patrol found in an SUV was struck from the record by a federal judge because the agents didn't get the driver's consent to X-ray the vehicle.

The CBP had two suspects exactly where it wanted them: detained by agents at a checkpoint. And the longer they were detained, the more nervous they got. Despite a search of the interior turning up nothing and the drug-sniffing dogs failing to alert, the CBP officers were pretty sure they had just captured two smugglers. So, the agents routed the vehicle through their backscatter X-ray scanner, skipping a step in the process.

Agent Buchanan testified that he did not rely on probable cause for the backscatter search, but rather on consent to search given by Defendants. He testified, “we always ask for consent for the backscatter . . . unless we’ve already found something in the vehicle.” He testified that he typically has another agent get consent to search the vehicle with the backscatter. Agent Buchanan was unable to identify the agent he asked to get consent from the Defendants and was unable to confirm that such consent was requested.

So, Buchanan was unable to come up with any evidence or probable cause, but decided to perform the backscatter anyway, despite his doing so being completely contradicted by his portrayal of the CBP's standard m.o. This wasn't the only contradictory statement in the CBP's testimony.

Agent Valdez, who remained in the secondary waiting area with the Defendants, testified that he was present when Defendants gave consent to the backscatter search. However, he was unable to identify the agent who requested consent, how the request was phrased, and how the Defendants replied.

Valdez, despite being "present," couldn't actually say whether the defendants had given consent (or who to), but went ahead and told the court that the two men had consented.

The backscatter device -- an additional search that required consent or a warrant -- uncovered 14 wrapped packages of meth, 16 kilograms in all. From that Fourth Amendment-skirting search, the CBP compiled its criminal complaint. Now, all of that narrative is nearly useless, thanks to these officers' actions.

The court, on its way to dismissing as evidence the 16 kilos of meth obtained that day, points out the government's contradictory statements, as well as its inability to find anyone to corroborate the multiple claims that permission for the search had been granted.

Defendants argue that Border Patrol agents did not request their consent to search the vehicle with a backscatter. Agent Buchanan testified that he asked another Border Patrol agent to obtain that consent, but he was unable to identify the agent and was unable to confirm that the agent requested consent. Although Agent Valdez testified that he was present when Defendants gave consent for the backscatter search, he was unable to recall which agent requested consent and what was said by the agent and the Defendants. More importantly, the Government failed to identify and to offer the testimony of the agent who purportedly sought and obtained the consent.

And away goes 16 kilos of evidence, along with the bust itself, most likely. Kind of hard to prove the defendants were smuggling drugs when you can't introduce the smuggled drugs in court. Everyone at this particular CBP checkpoint apparently felt someone else would handle the consent issue. And even if the agents had been rebuffed, it's not as though the detainees were free to go. A warrant could have been acquired, most likely with minimal effort.

This isn't a huge bust nor would it have put a significant dent in a drug lord's operation. The CBP only had a couple of guys who had muled themselves out for a few hundred dollars. That, in and of itself, is just one of the problems with this nation's drug war. Thousands of tiny arrests like these happen every day and the "problem" isn't anywhere closer to being "solved."

The other thing this incident is symptomatic of is our nation's law enforcement agencies' extremely casual relationship with the Fourth Amendment. Time after time, we see the government (national and local) doing everything it can to avoid obtaining warrants -- whether it's their tendency to ask dogs for "permission" to perform warrantless searches or officers themselves using everything from imperceptible whiffs of drug odors to declaring every sign of nervousness as tantamount to a full confession. "Probable cause" is a low bar, but law enforcement agencies seem willing to sidestep it with alarming regularity. The CBP had a car full of drugs and two suspects nailed, but it showed that its "respect" for the Fourth Amendment was just a formality. Now, it has nothing more than two men suspected of smuggling the same drugs that can't be used against them in a court of law.

from the say-what-now? dept

We've seen some unique interpretation of copyright law over the years, but generally the really big companies -- especially content-driven companies -- have semi-decent lawyers. So it's just bizarre and surprising that media giant Thomson Reuters apparently believes that it can license whatever content it wants by merely sending an email and saying that a refusal to respond will be taken as consent that it can use your content. Here's the form letter that Thomson Reuters apparently sent to the Indian site MediaNama, and which it has likely sent to others as well:

Thomson Reuters is a global provider of electronic information, committed to providing our customers with comprehensive, timely and reliable information. Our services include the provision of key financial market content to the largest and most diverse group of financial market participants in the world. Our business customers, who include analysts, fund managers, corporate financiers and traders, watch news and prices on more than 300,000 screens linked to a secure private communications network spanning more than 150 countries.

We are writing to seek your consent to use and redistribute certain content from your website (the “Content”), in particular, articles that pertains to companies that have received investment funding from Private Equity firms and other Private Equity related articles, within Thomson Reuters services (the “Services”). For the purpose of this letter Thomson Reuters means the Thomson Reuters Group.1 We may use automated tools in order to identify and obtain such content from your website.

As such the Thomson Reuters group shall have the right to use, incorporate and distribute the Content in its Services to its subscribers and to permit such subscribers to use and redistribute the Content. We are aware that you will be receiving numerous requests of this nature and that asking you to give a response in each case would be burdensome for you. We would ask, therefore, that you respond either to the address or e-mail address given below within 14 days of the date at the head of this letter only if you wish to refuse your consent. Otherwise, Thomson Reuters will presume that your consent has been given for the purposes set out in this letter. Performance by Thomson Reuters under this letter will constitute adequate consideration for the purposes of this letter.

Please do not hesitate to contact us for any further information; for questions and clarifications, you may contact Maria Nikka De Vera, Research Analyst – Private Equity at n***********@thomsonreuters.com.

Yours Faithfully,

Kate Brown
Head of Content Acquisition – EMEA
Reuters Limited

1 “Thomson Reuters Group” shall mean any company from time to time under the control of, controlling or under common control with the entity signing this letter and also includes any third party from time to time authorised by Thomson Reuters. For the avoidance of doubt, Thomson Reuters Group shall also include The Thomson Reuters Corporation and any entity from time to time, that is directly or indirectly controlling, controlled by or under common control with Thomson Reuters Corporation. An entity will be deemed to control another entity if it has the power to direct or cause the direction of the management or policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.

Now, some of us don't mind when our content is used in this manner -- and let others freely share it. And, there are cases where I think there's a strong fair use case to be made for things like news clippings and the like -- but India doesn't have a broad fair use structure like the US, so that wouldn't apply here. And, of course, by pushing this bizarre "licensing by failure to respond" setup, it would seem like the company is admitting that it thinks it does need to license the content in question.

So here's the question: if we send Thomson Reuters a similar letter, and the company fails to respond, and then we start reposting Reuters stories on Techdirt, how quickly do you think their lawyers would nastygram us?

from the and-maximum-creepiness dept

As you may have heard (since it appears to have become the hyped up internet story of the weekend), the Proceedings of the National Academy of Sciences (PNAS) recently published a study done by Facebook, with an assist from researchers at UCSF and Cornell, in which they directly tried (and apparently succeeded) to manipulate the emotions of 689,003 users of Facebook for a week. The participants -- without realizing they were a part of the study -- had their news feeds "manipulated" so that they showed all good news or all bad news. The idea was to see if this made the users themselves feel good or bad. Contradicting some other research which found that looking at photos of your happy friends made you sad, this research apparently found that happy stuff in your feed makes you happy. But what's got a lot of people up in arms is the other side of that coin: seeing a lot of negative stories in your feed appears to make people mad.

There are, of course, many different ways to view this: and the immediate response from many is "damn, that's creepy." Even the editor of the study, admits to the Atlantic, that she found it to be questionable:

"I was concerned," she told me in a phone interview, "until I queried the authors and they said their local institutional review board had approved it—and apparently on the grounds that Facebook apparently manipulates people's News Feeds all the time... I understand why people have concerns. I think their beef is with Facebook, really, not the research."

Law professor James Grimmelmann digs deeper into both the ethics and legality of the study and finds that there's a pretty good chance the study broke the law, beyond breaking standard research ethics practices. Many people have pointed out, as the editor above did, that because Facebook manipulates its news feed all the time, this was considered acceptable and didn't require any new consent (and Facebook's terms of service say that they may use your data for research). However, Grimmelmann isn't buying it. He points to the official government policy on research on human subjects, which has specific requirements, many of which were not met.

While those rules apply to universities and federally funded research, many people assumed that they don't apply to Facebook as a private company. Except... this research involved two universities... and it was federally funded (in part) [Update: Cornell has updated its original story that claimed federal funding to now say the study did not receive outside funding.]. The rest of Grimmelmann's rant is worth reading as well, as he lays out in great detail why he thinks this is wrong.

While I do find the whole thing creepy, and think that Facebook probably could have and should have gotten more informed consent about this, there is a big part of this that is still blurry. The lines aren't as clear as some people are making them out to be. People are correct in noting that Facebook changes their newsfeed all the time, and of course Facebook is constantly tracking how that impacts things. So there's always some "manipulation" going on -- though, usually it's to try to drive greater adoption, usage and (of course) profits. Is it really that different when it's done just to track emotional well-being?

As Chris Dixon notes, doing basic a/b testing is common for lots of sites, and he's unclear how this is all that different. Of course, many people pointed out that manipulating someone's emotions to make them feel bad is (or at least feels) different, leading him to point out that plenty of entertainment offerings (movies, video games, music) also manipulate our emotions as well -- though Dixon's colleague Benedict Evans points out that there's a sort of informed consent when you "choose" to go to see a sad movie. Though, of course, a possible counter is that there are plenty of situations in which emotions are manipulated without such consent (think: advertising). In the end, this may just come down to being about what people expect.

If anything, what I think this does is really to highlight how much Facebook manipulates the newsfeed. This is something very few people seem to think about or consider. Facebook's newsfeed system has always been something of a black box (which is a reason that I prefer Twitter's setup where you get the self-chosen firehose, rather than some algorithm (or researchers' decisions) picking what I get to see). And, thus, in the end, while Facebook may have failed to get the level of "informed consent" necessary for such a study, it may have, in turn, done a much better job of accidentally "informing" a lot more people how its newsfeeds get manipulated. Whether or not that leads more people to rely on Facebook less, well, perhaps that will be the subject of a future study...

from the scan-you-see-the-problem? dept

In past discussions around the use of technology to achieve school security, we have typically found that the practice has more to do with money than safety. Such was the case when a Texas school district issued RFID-chipped student IDs, the impetus for which was actually all about receiving government funding based on attendance. While there was backlash from students and parents in that case, the ire was likely somewhat muted by the fact that these were still basically just ID cards with a little extra juice in them.

The situation is quite different in the case of Polk County, Florida schools, which instituted compulsory iris scans of its high school, middle school, and elementary school students, and then sent out a letter to parents announcing they could opt out after the scans had already been completed.

Reports were confirmed Wednesday that Daniel Jenkins Academy, a high school, Davenport School of the Arts, a middle school, and Bethune Academy, an elementary school, planned a pilot scan program with a security program and the schools allowed officials from Stanley Convergent Security Solutions to take iris scans of an unknown number of students. Parents of the students were sent a letter on Friday, May 24, although the letters were dated for delivery the day before. The letters stated that the scanning program would begin on May 20, and allow for students to opt out. However, all students were scanned before any letters were sent home.

There is a saying that goes something like this: Never attribute to malice that which is adequately explained by stupidity. While public school administrations can often be found rife with the latter, the lack of judgment in this case seems unbelievably grotesque. Anyone with a modicum of sense simply had to know that scanning irises of students was going to raise at least some controversy. To supercharge that by conducting the scans a full three days before a letter informing parents was scheduled to go out, and four days after it actually did, reeks of masochism. Add to that anyone on the lower levels of the operation, who might not be aware of the late-arriving letter to parents, not batting an eye when there wasn't a single instance of parents opting out of the procedure and you have the kind of cauldron of dumb that keeps private schools in business.

To add insult to injury, parents are reporting that attempts to get answers from the school are about as useful as a wedding ring is to the Pope. One particular parent was hilariously directed by the school, which should have had the answers to questions about procedures conducted on its students, to instead contact PCSB, the county school board.

By the time we were able to make a phone call to PCSB (a time span of about 1 hour), the secretary told us that this pilot program had been suspended. When we did get a return call from one contact, she reiterated that the program has been suspended, like this should appease us. My husband continued to ask where our son's private scans were, and she said the company was instructed to destroy the information. When we asked how do we know this has happened, there was no answer.

It is interesting that this letter went home on Friday afternoon at 3pm. Like I told you originally, everyone was gone by 4pm when I tried to make calls. So when exactly did this program get suspended? As of Friday afternoon, it was still in effect. Are they trying to say that somehow it was suspended by Tuesday morning (Monday being a holiday)? It seems like they are mostly focused on this program, like the program was the problem. It's not, it's the invasion of my family's Constitutional right to privacy that is the problem, as well as the school allowing a private company access to my child without my consent or permission. This is stolen information, and we cannot retrieve it.

The district has since claimed that all records and scans from the program have been destroyed, but hasn't bothered to offer any method for parents to confirm this claim. So now we get to endure the resulting suspicion and resentment that is likely going to go unresolved. The district will claim error, parents will stay outraged, and the lawsuits will likely fly. All because the schools couldn't be bothered to tell parents their children were going to have their irises scanned.